Wed, 16 Nov 2011

The next meeting of the Metropolitan Police Authority (MPA) full Authority on
2011-11-24 starting at 10am promises to be interesting for those concerned by
the criminalisation of innocents and of peaceful protest. The agenda
has just been published and it features a question about police provocations at
a peaceful march and a report addressing how the Met seeks to address the key
findings of the review ‘Protecting the
innocent’ – The London Experience of DNA and the national DNA
database. Attendance is open to the public.

Following the police provocations at the peaceful silent procession to
Downing Street in remembrance of those who dies in custody (see my earlier
report at Police
provocations at peaceful march against deaths in custody), Samantha
Rigg-David will be asking
to the MPA the following question on behalf of the United Families and Friends
Campaign (UFFC):

‘The UFFC, a coalition of bereaved families, has been hosting an annual
procession for 13 years in remembrance of loved ones who have died in custody or
state care. The stewarded march, led by family members, entails a silent
procession from Trafalgar Square to Downing Street. Following this, family
members share experiences of the loss of their loved ones and then deliver a
letter to Downing Street containing a list of recommendations for consideration
by the Prime Minister. Traffic is often temporarily blocked in the process for a
short time. Although it is an emotional event, the march has always passed
peacefully and typically disperses around 4pm. The march provides a rare
opportunity for grieving families to come together to highlight concerns to
those in authority and also provide mutual support. Policing of the march in the
past has appeared to be proportionate both in response to the sensitive nature
of the event and also in recognition that it does not pose a threat to public
order.

This year, at about 3pm, after delivering the letter to Downing Street family
members and friends found themselves subject to aggressive and degrading
treatment at the hands of a large deployment of what we believe were TSG
officers [The 'U' collar
number clearly visible in this
photograph by Guy Smallman, for instance, confirms their deployment]. In
addition to this a helicopter was flying overhead and we also noticed a FIT team
had been deployed. The sudden deployment of around 100 officers, in addition to
the large number of uniformed officers already present, and the ensuing
treatment caused panic, physical injury and distress to the remaining marchers.
Attempts were made by stewards, legal observers and marchers to talk to the
police, informing them this move was provocative and appealing for restraint,
but this was ignored. The officers performed a ‘sweep’ of the road,
as if clearing it of rubbish, pushing aside and trampling on anybody in their
way. We believe there was only a small crowd of marchers in the road at this
point with around half the march on the opposite side of the road. The actions
of the police caused marchers on the opposite side of the road to move forward
to join those being swept in an attempt to provide some sort of safety in
numbers against this attack.

Many of those that the police ‘swept’ were vulnerable bereaved
relatives including parents, grandparents and children. At one point officers
picked up the mother of someone who had died in custody by her arms and legs and
deposited her on the road like a ‘sack of potatoes’. Children were
screaming in fear. After this the police began to form a kettle, which caused
widespread intimidation and forced marchers to disperse in an undignified and
cajoled manner without any proper closure to the march. Those who attended the
march have told me they feel traumatised by the experience. We understand it is
not the role of the MPA to investigate the actions of individual officers on the
march however it does hold responsibility for holding the police to account over
operational and tactical matters.

We believe it was both entirely unwarranted and unnecessarily confrontational
to deploy these officers and wish the MPA to fulfil its public duty by assisting
us in scrutinising how and why this decision was taken. I wish to attend the
full authority meeting to raise this question in person.

We are fully cognisant of the climate of the times, in terms of heightened
public interest around deaths in custody and levels of tension around public
order policing. However, we believe this calls for intelligent and sensitive
policing. We do not accept that the response of the police was justifiable,
proportionate or in accordance with ACPO guidance around keeping the
peace’.

Also on the agenda is the Metropolitan Police Service's response
to the Civil Liberties Panel review ‘Protecting
the innocent’ – The London Experience of DNA and the
national DNA. When the Civil Liberties Panel published its
recommendations in June, it gave three months to the Met to respond
with a timetable for implementation (see The
London experience of DNA and the National DNA Database). The Met's
response will be presented to be reviewed by the Civil Liberties Panel.

MPS response to the Civil Liberties Panel
review ‘Protecting the innocent’ – The London Experience of
DNA and the national DNA database

Report: 7
Date: 24 November 2011
By: Director of Forensic Services on behalf of the Commissioner

Summary

This report sets out the MPS response to the MPA Civil Liberties Panel
review: “Protecting the Innocent”. The MPS accepts all the
recommendations made within the review and seeks to address the key findings of
the Panel and the concerns of London citizens as expressed within the report.
The key focus of the Panels’ report is communication and engagement with
the communities and therefore trust and confidence in policing London and the
use, by the MPS, of DNA profiling to solve crime, strike the right balance
between the liberty of individuals and protecting society.

A. Recommendations

That Members note the MPS response to their recommendations as set
out in the report “Protecting the innocent”: The London experience
of DNA and the National DNA Database”.

B. Supporting information

1. The MPS actively contributed to the MPS Civil Liberties Panel review into
the London experience of DNA profiling and the National DNA Database and agrees
with its key findings that:

DNA profiling is critical to the successful investigation of crime
particularly in serious violence and sexually motivated crime where the
perpetrator is a stranger to the victim.

The Protection of Freedoms Bill addresses the judgement in the European
Court of Human Rights in the case of S and Marper where the court found against
the UK for the blanket and indiscriminate retention of DNA profiles but the Bill
will allow for a speculative search of all those arrested for a recordable
criminal offence.

The MPS need to have robust procedures for the taking, examination, storage
and deletion of DNA profiles and provide reassurance that these procedures are
being adhered to.

There needs to be much more communication and engagement with the citizens
of London to ensure that use and impact of DNA profiling is understood and that
there are the necessary safeguards in place to protecting privacy and civil
liberties.

2. The title of the report “Protecting the innocent” could be
taken to refer to those who are arrested and not convicted but have their DNA
profile retained indefinitely under current legislation. It could equally refer
to all of the individuals who are suspected of a crime but found to be
eliminated as a suspect because their DNA profile does not match the DNA found
at the crime scene or on the victim. It is the power of DNA profiling to exclude
that provides one of the strongest safeguards against false accusation or
wrongful conviction in the criminal justices system. The recommendations made in
the report provide a basis for the MPS to further strengthen its processes and
inform the citizens of London, so that the balance between an individuals civil
rights and the need for society to identify criminals and bring them before the
courts. In the following section we have addressed each recommendation providing
a response on the action to be taken by the MPS to implement the recommendation.
All of the recommendations of the Civil Liberties Panel are accepted by the
MPS.

3. On the timing and timescales for implementation where there are simple
process changes, such as not making a confirmatory DNA sample the MPS will
implement as soon as practicable. For some of the wider changes and in
particular community engagement, we see merit in timing communication and change
to coincide with the implementation of the Protection of Freedoms Bill. This
will mean that positive messages about the management and use of DNA profiling
by the MPS can be reinforced alongside the wider changes to destroy DNA samples,
limit DNA retention of unconvicted individuals and acknowledge the introduction
of the role of the Biometrics Commission.

Recommendation 1: [section 3.3 of the report] - People who
have their DNA taken should be provided with the following information in
writing, at the point when their DNA is taken (full recommendation not
recorded).

Why their DNA has been taken and what this means
for them:

for those arrested for a recordable offence

for those examined under Schedule 7 of the Terrorism Act 2000

for those who volunteer to provide a DNA sample

The circumstances in which DNA is retained and
for how long (both the sample and the profile)

Where their DNA samples will be stored.

How and in what circumstances
an individual can apply to have DNA removed from the Database including clear
guidelines on the framework for decision making.

Who has access to their DNA record and the
safeguards in place to protect this information.

[text in italics added from the original Recommendation 1. Emphasis
added.]

Recommendation 5: [section 3.6 of the report] - In relation
to the management of DNA within MPS custody suites, the MPS should: a) Agree a
clear process outlining how and when DNA samples are to be taken, processed and
retained within custody. b) Train all officers and staff responsible for taking
a DNA sample to ensure the procedure is undertaken correctly. c) Develop an
agreed chart detailing each step of the process which should be prominently
displayed in every MPS custody suite (accessible to both MPS personnel and
arrestees). This chart should be dated and subject to regular review.

Ensure that this agreed procedure is
strictly adhered to across all MPS custody suites.

Ensure that any deficiencies identified
through the HMIC/HMIP custody suite inspections in relation to the management of
DNA are addressed.

[text in italics added from the original Recommendation 5]

4. We have taken the two recommendations together as they address the
information to be provided in MPS Custody Suites and the process of DNA sampling
for individuals under Criminal Law. We have produced draft pamphlet and posters
that address the specific points made in the recommendations for the different
groups of individuals who will be asked by the police to provide a DNA sample
i.e.

5. We have produced a revised process for DNA sampling in custody that
incorporates the detailed points made in recommendations 1 and 5 and
recommendation 6 that is dealt with later in the report. These processes will be
promulgated through the MPS Aware system and will be published on the MPS
internet site. All police officers and police staff who undertake DNA sampling
will undergo training using these processes. We anticipate that, subject to the
further consultation on the content and delivery of the training in the MPS,
that the process will be implemented and the training completed by March
2012.

6. With regard to audit the central MPS DNA Services Unit monitors overall
compliance with the procedures by providing a quality assurance function and
generating management information for use by Borough Commanders and Territorial
Policing HQ to ensure compliance with procedures and legal requirements. The
management information that is provided on a monthly basis includes; the current
performance of MPS Boroughs in DNA sampling from January - August July 2011 is
given at Appendix
D. In addition to providing this information the process on Boroughs,
including the storage of DNA samples, are audited by the Borough Forensic
Manager (BFM) and Crime Scene Manager (CSM) at quarterly intervals. The MPS also
respond to HMIC Inspections.

7. As well as providing a pamphlet and written procedures two draft posters
have been produced in response to the request by the Civil Liberties Panel;
“Your DNA and What It Means to You” and “The DNA Sampling
Process in Custody”. These will be the subject of further consultation
within the MPS and with MPA members.

Recommendation 2: [section 3.4 of the report] - The MPS
should demonstrate through their community engagement work, how they will raise
understanding of, and public confidence in, the use of DNA in policing.

8. The MPS Diversity and Citizen Focus Group and DNA Services Unit will work
collaboratively to engage with communities in London to raise awareness on DNA
sampling processes and the use of DNA in policing. It is important that such
engagement dispels perceived myths the public may have as to what actually the
police can do with a persons DNA, who has access to the DNA profile and what it
actually means to an individual to have their profile on the National DNA
Database. Particular concerns to the public are the disproportionate
representation of some groups and communities on the National DNA Database but
greater communication and engagement with citizens of London will aim to address
these concerns and develop greater understanding of when and why DNA is taken
and that the ethnic make up of the DNA Database is a product of the Criminal
Justice System and therefore not disproportional in its own right.

9. It is anticipated this community engagement will be delivered via a number
of focus groups, held in various locations throughout London, where true
representation of the local community is encouraged. In addition to this
Jeanette Arnold has also proposed facilitating a question and answer session
with prominent community leaders representing minority groups and communities in
London. The community engagement program will be undertaken in 2012.

10. Engagement and communication with the citizens of London is critical to
ensuring trust and confidence in the MPS. DNA profiling has advanced faster than
any other forensic science discipline and will continue to advance rapidly, for
example, the introduction of rapid DNA profiling in the Custody Suites and more
sensitive and discriminating techniques will potentially raise public concerns.
It is crucial that this engagement and communication continues and the public
are kept informed of advancement in DNA technology and the significance of DNA
and the DNA database in helping to solve crime.

Recommendation 3: [section 3.6.3 of the report] - Where the
police take an individual in need of immediate care or control to a police
custody suite as a place of safety as set out under section 136 of the Mental
Health Act 1983 (as opposed to the individual being arrested for a recordable
offence), the MPS should ensure that their DNA will not be taken.

11. It is MPS policy and a requirement of the Mental Health Act 1983 Code of
Practice that a police station should only be used as a Place of Safety on an
exceptional basis. A police station may be used where the detainee’s
behaviour poses an unmanageably high risk to other patients, staff or users of a
healthcare setting. On the very rare occasions where a police station is used,
the MHA code places clear responsibilities upon health and social care agencies.
MPS policy and procedures including the revised procedures referred to in MPS
‘Operational guidance for police officers and staff responding to
incidents involving someone with a mental illness 2010’ make it clear that
under no circumstances should a DNA sample be taken from individuals who are
detained solely at a police station as a result of the power under Section 136
unless where a person exhibiting signs of mental illness sufficient to justify
use of the Section 136 power is also liable to arrest for another matter, they
should be arrested under both provisions. In such a circumstance a DNA sample
can be taken if the arrest for the criminal matter is for a recordable
offence.

12. As an additional safeguard the DNA Services Unit provides quality
assurance such that if a sample was taken purely for the detention at a police
station under Section 136 Mental Health Act then it would not be forwarded for
processing. In 2010-11 and 2011-12 to date, there have been no instances where a
DNA sample has been received from an individual who was detained purely under
Section 136 of the Mental Health Act 1983.

Recommendation 4: [section 3.6.5 of the report] - The MPS
should undertake a full Equality Impact Assessment (EIA) on the use of DNA
within the MPS to address the impact of the use of DNA and the DNA Database on
communities within London. This should seek to identify any disproportionality
and include details of specific actions the MPS will take to address issues
identified. It should be reviewed on a regular basis.

13. As part of the review of MPS DNA procedures the DNA Services Unit is
required to undertake an EIA. This will involve the engagement with various
communities within London, identifying any disproportionality on DNA sampling,
addressing any issues identified in an effective manner. The Equality and Human
Rights Council (EHRC) dictates regular review of this assessment. It is
anticipated this EIA will be completed by January 2012. The MPS recognises that
there is a clear overlap in responding to recommendations 2 and 4.

Recommendation 6: [section 3.6 of the report] - For all
suspects arrested following a match on the DNA database between their DNA
profile and an unsolved crime stain, it is MPS practice to take a confirmatory
DNA sample from the suspect on their arrest. This is resource intensive and not
standard practice across all forces. Therefore the MPS should provide a
rationale for this including the costs for undertaking this practice.

14. The rationale for taking a confirmatory DNA sample has its origins in
managing the risk of relying on a previous sampling process where there was no
quality assurance as currently provided by the DNA Services Unit. The MPS
introduced central management and quality control of the DNA sampling process
much later than other police forces. In discussions with the CPS and to
facilitate the provisions of evidence the taking of a confirmatory DNA sample
was introduced. There are, however, recent changes in the criminal justice
system and in particular the introduction by the MPS of Streamline Forensic
Reporting (SFR). Under this process the provision of DNA matches and evidence is
tightly managed by forensic case managers and the process allows for challenges
to the forensic evidence to be identified and dealt with early in the criminal
justice process, reducing the risk of discontinuance at court. The SFR will be
rolled out across the MPS to deal with the majority of DNA matches in such a way
that risk of challenge will be minimised. The MPS will, therefore, in
consultation with the CPS change its policy to not require a confirmatory
analysis for DNA matches produced by the National DNA Database. It is
anticipated that this change will take effect on 1st April 2012.

Recommendation 7: [section 4.4 of the report] - The MPS
should put in place procedures to ensure the removal of personal and demographic
details prior to sending DNA samples to the forensic service providers.

15. This recommendation is a national requirement, the work overseen by the
NDNAD Strategy Board in consultation with Police Forces including the MPS and as
part of the Privacy Impact Assessment of the National DNA Database, the Strategy
Board will be taking the following measures to enhance the security and privacy
of DNA information used on the NDNAD.

Changing the DNA sampling kit in order to limit the critical information
held by Forensic Service Providers (FSP’s). Names will no longer be passed
to the FSPs for newly sampled individuals from December 2011.

FSPs are adding additional steps to decouple the DNA raw data file with the
sample. This will be by implementing a processing identifier within their
processes so that there is no link between the original sample identifier
barcode to the DNA raw data. All FSPs are aiming to have completed this by the
end of the March 2012.

There will be an independent audit to provide the Strategy Board and MPS with
reassurance that the processes in operation within the FSPs are compliant with
the Data Protection Act.

Recommendation 8: [section 4.5 of the report] - In relation
to volunteer samples taken for elimination purposes, the MPS should ensure
forensic service providers are informed when the criminal justice process has
been concluded to ensure the DNA sample and corresponding DNA profile are no
longer required and can be destroyed.

16. The MPS require volunteer samples to be taken as part of a criminal
investigation to eliminate individuals from that investigation, for example the
householder and victim of a domestic burglary, and are therefore important to
effective progressing of an investigation. The MPS agree that the timely
destruction of these samples and associated profiles are a requirement, and
appreciates the possible human rights issues involved in retaining the samples
and profiles longer than required. Historically and due to the way in which
these samples were submitted for profiling i.e. no central collection or
recording of the samples prior to submission, together with a difficulty in
ascertaining when a case is concluded, most of these samples have been retained
within the forensic laboratories after profiling. The MPS have devised a
mechanism whereby the MPS DNA Services Unit will routinely be sent a list of
volunteer elimination profiles from all contracted forensic service providers.
All samples and extracts that have yielded a DNA profile will be destroyed
immediately and any un-profiled DNA kits will be destroyed 3 months after the
case has concluded.

Recommendation 9: [section 6.4 of the report] - The MPS
should specify how MPS budgets will be impacted by the provisions within the
Protection of Freedoms Bill. This should detail immediate and ongoing cost
obligations.

17. The Protection of Freedoms Bill is yet to complete its passage through
Parliament so the full financial implications are not yet clear. The MPS has
made representations to the Home Office and Ministers to adopt a retention
regime for DNA profiles that can be managed through the national police systems
and databases (PNC PND), (IDENT1 and NDNAD) so that costs to police forces of
administering a retention regime are kept to a minimum. The current
governments’ proposals are, however, complex and will require major
changes to accommodate all of the possible outcomes from an arrest for a
recordable offence. They also include a determination by the Biometrics
Commissioner for those individuals arrested for a recordable offence that is a
qualifying offence but is not proceeded with to charge i.e. No Further Action
(NFA). Appendix
E gives a schematic representation of the retention regime under the
Protection of Freedoms Bill and Appendix
F gives an approximation of some financial costs to the MPS to implement
some of the provisions of the Protections of Freedoms Bill as it currently
stands.

Based on the provisions as they currently stand after the second reading in
the Commons the main areas of concern are:-

Annonymisation [sic] of raw data files as opposed to the deletion of the
same;

CPIA provisions in respect of deletion and destruction of elimination and
evidential samples and profiles within casework for use in court
proceedings;

Automation of PNC files to enable deletion of DNA profiles;

The position of the police service at the commencement of the proposed
legislation.

C. Other organisational and community implications

Equality and Diversity Impact

1. The report published by the Civil Liberties Panel for the MPA focuses on
equality and diversity issues for citizens of London. The MPS response has
looked to address the issues highlighted within “Protecting the
innocent” as detailed in a number of the recommendations particularly
Recommendations 2 and 4.

Consideration of Met Forward

2. In consideration of the three strategic outcomes of Met Forward, tackling
the issues that matter most to Londoners: fighting crime and reducing
criminality; increasing confidence in policing; and giving us better value for
money. This report seeks to address each of them individually within our
response to each of the recommendations.

Financial Implications

3. There are direct financial implications as a result of this paper, such as
the costs to the MPS for the provision of posters in Custody Suites and a
pamphlet to be given to individuals taken into Custody and who will have a DNA
sample taken Recommendations 1, 5 and 6. A further cost will be the outcome of
training given to police officers both for the implementation of the revised DNA
sampling processes and retention and deletion of DNA profiles under the
Protection of Freedoms Bill.

4. Details of budget savings (Recommendation 6) and the impact upon the MPS
as a result of implementing the provisions within the Protection of Freedoms
Bill (Recommendation 9) are referred to in the body of this report.

5. For consideration in respect of this report both in terms of the immediate
and ongoing costs is whether they can be met out of existing police budgets. The
Protection of Freedoms Bill will have a considerable financial impact on the MPS
which accounts for a fifth of all profiles on the National DNA database. The
exact cost implications are unknown at this time until the Bill passes through
Parliament and receives Royal Assent, believed to be around summer 2012.

Legal Implications

6. There are no direct legal implications arising from this report which is
presented for information only.

7. The Protection of Freedoms Bill will in future contain a revised framework
for the retention and destruction of fingerprints and DNA samples and profile,
with the aim to strike a balance between public protection and safeguarding
civil liberties.

Environmental Implications

8. There are no known direct environmental implications contained within this
report.

9. Following implementation of the Protection of Freedoms Bill DNA samples
will no longer be retained for longer than 6 months. Currently DNA samples are
held indefinitely. The impact of this upon the environment is considerable since
they are held in freezers, following commencement of legislation there will be a
lesser environmental impact as there will be no requirement for long-term
freezer storage.

Risk (including Health and Safety) Implications

10. There are no Health and Safety implications as a result of this
report.

D. Background papers

None

E. Contact details

Report authors: Gary Pugh, Director of Forensic Services, MPS

Bootnote The man who was arrested at
the UFFC march against deaths in custody was not DNA sampled. When he was
transported to the custody suite at the back of a van, he was handcuffed in the
back so could not sit properly and was not made to wear a seatbelt. I've asked
details about the Safe
transport of detainees on arrest. The custody suite at Marylebone police
station where he was held was opened just for the occasion; the officer at the
desk of the station didn't know the custody suite had been opened that day, the
last time he remembered it being opened was for the students demonstrations. It
is unclear whether this custody suite is visited by Independent Custody Visitors
(ICV). Protocol 7 of Appendix G of the ICV handbook explains that the police
should 'inform [the local ICV] panels promptly of any intended changes, closures
or additions to custody facilities', however the published annual reports of the
Westminster ICV panel do not mention the Marylebone station's custody suite.
I've asked details about the Availability
of custody suites & ICV visits.